Libel reform and the public – review of MST/INFORRM debate at Gray’s Inn

12 January 2011

Could libel reform have a damaging impact on the public’s access to justice? This was one of the key questions to emerge last night from ‘Libel Reform: in the public’s interest?’, a public debate organised by Gray’s Inn in association with the Media Standards Trust and INFORRM.

Chaired by Helena Kennedy, an audience of lawyers, journalists, politicians and campaigners listened to the panel range over everything from the affordability of libel claims, the difference between individual bloggers and large media organisations and whether libel is too ‘claimant friendly’, to standards in journalism, alternative dispute resolution mechanisms and the impact of the government’s libel reform bill (expected in March) on news reporting.

Sir Charles Gray, barrister and former High Court judge, promised the audience that he had chosen ‘unsexy topics’: first, how to devise a system which offered fair and fast resolution to media crises, and second, the viability of alternative dispute systems. While the ‘chilling effect’ of libel on newspapers has been much discussed, Sir Charles found it equally chilling that most people were unable to afford access to justice. He suspected that costs would remain ‘exorbitant’ for most individuals, even after reform.

Recognising this ‘undoubted problem’ was not difficult – but the solution was not so easy. Sir Charles last year chaired an Early Resolution Procedure Group, which was trying to find an ‘easier, and therefore cheaper’, way of resolving cases quickly. One of the main problems was that different sides in a case often disagreed about the meaning of words at the heart of it: a complainant might argue that a newspaper was accusing them of fraud, the newspaper might argue that they’d said there were ‘reasonable grounds’ for thinking the complainant might be fraudulent, the two sides fighting different battles on the same field. Gray’s solution to this was for the judge to determine the meaning at the start of the case, which would then hold throughout. It might be possible for a Private Member’s Bill to enact a ‘modest’ reform such as this after a government bill had gone through.

Sir Charles finished by talking about Alastair Brett’s alternative resolution system, which involves a legally qualified chair and two lay members considering cases and resolving them ‘amicably, cheaply, quickly’. He hoped this sort of approach would be attractive to media organisations.

Evan Harris, former MP and Liberal Democrat science spokesman, talked about the success of the Libel Reform Campaign of which he was part. He rejected the idea that the campaign was strongly backed by large media organisations – instead, their attitude to the whole thing was ‘curious’.

Rather than seeing the current law as ‘claimant friendly’ or ‘defendant hostile’, Harris said we should see it as ‘free speech hostile’. Reform would rejuvenate investigative journalism in the public interest. Editors of peer-reviewed journals would no longer have to worry about whether they could afford to publish articles with a real public interest, such as in scientific debates (drugs policy, for example). It could put a stop to wealthy individuals or corporations bullying small publishers.

On defining the ‘public interest’, Harris thought the government’s forthcoming bill would contain a public interest defence – but he didn’t think it would, or could, be a statutory version of the Reynolds defence, since this would take a long time to define in common law. More would be expected of media organisations practising ‘respectable journalism’ than individual bloggers. In terms of costs, he thought ‘if we get the statute right, the costs will fall’.

Harris also thought the bill would contain a single publication rule, with exceptions where justice required it; and wondered what protections there would be for Internet Service Providers. For him, the key to the success of the Libel Reform Campaign was not whether the defences against libel were improved, but whether there was an easier way to strike out cases that were clearly of little merit. The key question was ‘will public debate in the public interest’ be improved by libel reform? This was what was meant, he said, by democracy.

Helena Kennedy introduced Kevin Marsh, executive editor of the BBC College of Journalism, as the speaker representing journalists on the panel – he replied, ‘I think I might be quite rude about the media’. In the discussions around Lord Lester’s proposed libel reform bill, he had been struck by the ‘missing voice’ of the public – it was a bill for journalists, a bill for the media, and Marsh was not convinced by Lester’s denial of this. He hoped the forthcoming government bill would better balance the interests of the media and the wider public.

Certain things were not in dispute: free speech needed to be protected, actions were too costly and damages out of proportion, it was too easy for those wanting to bully journalists and small publishers, and libel law needed to be more up-to-date and reflect the ‘new media ecology’. Public interest journalism should clearly not be stifled. But the problem was that a lot of journalism wasn’t well-sourced or in the public interest – journalists told themselves they were independent and tell it like it is, but actually, ‘we make it up too often’. The wider public were more aware of this than those (like himself) looking at reform from within the industry.

Libel laws needed to protect the best of public interest journalism could also legitimate the worst, Marsh continued. As for the ‘chilling effect’ of libel law on journalists, in the cases of Robert Murat and the McCanns, Mark Stephens, Colin Stagg and Chris Jefferies, ‘couldn’t they have done with a bit more chilling?’ The low figures of public trust in journalism suggested the public already thought the press was too free.

There were five things Kevin would like to see in a reform bill: no reversal of the burden of proof, which would only add to ‘reputational muggings’; no requirement for a claimant to prove damage, since journalists should care that lying was wrong in itself; the basis of an ‘honest journalism defence’; a solution to the problem of multiple publication – although the multiple publication rule brought gold-diggers, the truth on the internet is that ‘once you’re libelled, you’re libelled forever’, and journalists should play fair; and crucially, the ‘simplification and acceleration’ of resolution. This final key point might have the added benefit of dispensing with the ‘absurd’ PCC and its code, and instead introduce genuinely independent arbitration.

Writer and bloggerZoe Margolis claimed that she was the least knowledgeable member of the panel on libel, and hadn’t known that much about it until a year ago, when she was libelled by a national newspaper: the Independent on Sunday had incorrectly titled a piece authored by her ‘I was a hooker, but became an agony aunt’. She asked herself whether she should defend her professional background, personal life and reputation, or ignore the libel and ‘get on with it’, opting for the former. She agreed with Kevin Marsh that once libelled on the internet, you were libelled forever – her inbox was flooded with Google Alerts from around the globe, and the stories started to dominate any search results containing her name. She knew an apology on page 47 would make no difference, so sued the Independent on Sunday as publicly as possible to make sure the libellous title was pushed down by other more ‘substantial’ stories about her and her work.

Margolis fought her case using a CFA (Conditional Fee Agreement), without which she couldn’t have afforded it – she had been ‘gobsmacked’ by the fees. The two-and-a-half month long process was ‘the most stressful period in my entire life’, ‘horrible’ and felt like being ‘on the edge of a breakdown’ – even thought she was the claimant, and not a defendant. She won damages, but also a day in court, as the paper very publicly had to issue a statement in open court. The incorrect stories now appear on page nine or ten of Google.

‘My story is about the success of libel, I suppose’ – but libel reform should remember that small people can’t afford action against big corporations, and we would be in a worse position if reform removed access to justice.

Razi Mireskandari, managing partner of Simons Muirhead & Burton, thought it was interesting (and worrying) that Margolis should feel she was ‘under attack’, given that she was the claimant. For him, the ‘massive problem’ with libel was not the substantive law, but costs. In the ‘bad old days’ before CFAs and ATE (After The Event insurance), only the rich could afford to litigate, and we should avoid a return to that situation. The proposals in the Jackson Review for limiting CFAs and making both CFAs and ATE recoverable only from damages, if adopted, would make it very difficult for a claimant to bring a defamation action (without worrying about losing their house).

He could remember, back in the 1980s and 1990s, when the pendulum was in the newspapers’ favour. CFAs had swung it too far the other way, with lawyers being able to make too much money. There needed to be a balance, and Mireskandari thought one solution would be to cap success fees, and ‘stage’ them through the litigation process, so the defendant was always able to assess where they stood – if they settled pre-action, it would be cheaper than at the end of a full trial. Privately, he thought a lot of clients in the media could live with that. He reiterated that in his view the Jackson proposals ‘will not be workable’.

From the audience, Paul Farrelly MP (of the Commons’ culture, media and sport select committee) thought a ‘number of nails’ had been ‘hit right on the head’. The question that should be asked of reform was whether it would affect ordinary people’s ability to sue – there had to be a ‘dual track balancing act’ between this and any reforms tackling the ‘chilling effect’ on free speech. David Allen Green asked whether there could be a non-Reynolds principle in a public interest defence; Mireskandari answered by looking at it from a different angle, namely the number of people that were reading the defamatory piece and how quickly it was taken down (compare a blogger with four readers acting quickly to a piece in The Sun). Martin Moore wondered if there might be exceptions for non-commercial bloggers and NGOs, who were not writing with the intention of selling more papers.

Sir Charles thought that ‘libel tourism’ had been ‘grossly exaggerated’ – though a journalist from the Kiev Post responded with an example of his paper being sued in the UK, despite having a small UK readership. Other points from the floor included the expense before a case reached court (trying to identify a defendant could be costly, reaching £80,000 in one case), which might be a problem even with early resolution; the role of European law (the European Commerce Directive) on the position of intermediaries, such as ISPs; and the ‘absurd’ US SPEECH Act, which should not concern us (we should be concerned with finding the correct position for the UK).

Tracey Brown, of Sense About Science, then spoke from the audience – she was ‘disappointed’ in the lack of thinking about what ‘public interest’ is. We always talk as if it is ‘more Today programme than Big Brother’ – the public might not agree, she said. There were four elements which came out of letters she had received: a desire for quick, easily disposed of access to justice; the need to think more widely about the ‘public’ as self-publishers and the public interest; that ordinary people are good at weighing things up for themselves and can differentiate between a BBC news report and a gossip column; and the need to look more carefully at how the ‘public interest’ has been recognised in law.

The last contribution from the floor, fittingly perhaps, came from Simon Singh, who said libel tourism was ‘far more prevalent’ than people supposed, and scientists were already wary about being quoted in interviews for fear of libel, before Hugh Tomlinson, of Matrix and INFORRM, closed the session. Libel reform and free speech were important issues, he said, because they were fundamental to how our democracy operates.

The event was held at Gray’s Inn on Tuesday 11 January 2011. Chaired by Baroness Helena Kennedy, the panellists were Sir Charles Gray, Razi Mireskandari, Evan Harris, Zoe Margolis and Kevin Marsh. It was organised by the Media Standards Trust, INFORRM, and Gray’s Inn.

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